State v. Anslinger

• Decision Date: 03 February 1903
• Parties: STATE v. ANSLINGER.
• Court: Missouri Supreme Court

71 S.W. 1041

171 Mo. 600

STATE v. ANSLINGER.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

ELECTIONS—DOUBLE VOTING—PROSECUTION —INSTRUCTIONS—GOOD CHARACTER OF DEFENDANT—NECESSITY FOR INSTRUCTION—STATUTES—CONSTITUTIONAL LAW—SPECIAL LEGISLATION—WITNESSES—CROSS-EXAMINATION.

1. On a prosecution for voting in more than one election precinct, it appeared that citizens had offered a reward for information leading to the conviction of any one violating the election law. Counsel for defendant, on cross-examination, inquired of a witness if he was not "out for the reward." Held proper for counsel for the state to inquire of the witness if the reward influenced his testimony.

2. The court having directed the jury's attention to their right to consider the interest of a witness in the result of a trial, it was not error for it not to have specially cautioned the jury as to the weight of the testimony of certain witnesses, in view of the offer of the reward.

3. Rev. St. 1899, § 2627, as amended by Laws 1901, p. 140, makes it the duty of the court, whether requested or not, to instruct the jury on all questions of law necessary for their information, which instruction shall include, "whenever necessary," the subject of good character. Held, that the court must instruct on good character whenever there is testimony as to good character in evidence, and the statute does not mean that it is discretionary with the court when there is evidence on which to base the instruction.

4. Evidence of good character is admissible in criminal cases where the nature of the charge reflects on the character of accused, and this whether the guilt of defendant be conclusive or doubtful.

5. In a criminal prosecution, testimony as to good character of accused must be limited to the traits of character involved in the charge.

6. Testimony in a prosecution for voting in more than one election precinct that accused was a "hard-working and industrious man" did not make it necessary for the court to charge on the subject of good character, as required by Rev. St. 1899, § 2627, as amended by Laws 1901, p. 140, when good character is in evidence, since the testimony did not bear on a trait of character involved in the charge.

7. Rev. St. 1899, § 2114, provides that every one who shall vote more than once at the same or different places shall be punished by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year. Section 7261, enacted subsequent to section 2114, provides that, if any one vote in more than one election precinct, he shall be punished by imprisonment in the penitentiary not less than two years, and such section has application alone to cities with 300,000 inhabitants or over. Const. art. 4, § 53, declares that, where a general law can be made applicable, no local or special law shall be enacted. Held, that as the word "precinct" means no more or less than place of voting, and the two statutes punish the same offense, but section 7261 is applicable only to the city of St. Louis, such statute is violative of the constitution.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Frank Anslinger was convicted of voting in more than one election precinct, and appeals. Reversed.

S. S. Bass, Jones, Jones & Hocker, and A. H. Roudebush, for appellant. The Attorney General, for the State.

FOX, J.

At the April term, 1901, of the circuit court, city of St. Louis, the defendant, Frank Anslinger, was charged, by indictment duly presented by the grand jury at said term of court (evidence of filing, June 19, 1901), with knowingly, willfully, fraudulently, and feloniously voting in more than one election precinct at a municipal election in the city of St. Louis on the first Tuesday in April, 1901. Defendant was duly arraigned, and entered his plea of not guilty. December 10, 1901, the defendant was tried, which trial resulted in a verdict of guilty as charged, and his punishment assessed at two years in the penitentiary. In due time defendant filed his motions for new trial and in arrest of judgment, both of which were by the court overruled, and appellant, in proper form, prosecuted his appeal to this court.

Upon the trial in this cause, in addition to the formal proof by the state of the scheme and charter of the city of St. Louis, providing for the election of city officers, and the day upon which such elections are to be held, identification of registration and poll books, qualifications of the judges, etc., three judges of election, one clerk, and a challenger at precinct 7, in ward 7, identify the defendant as depositing his ballot at that precinct at the election for the election of city officers in the city of St. Louis on the first Tuesday in April, 1901. It is unnecessary to further refer to the testimony as to defendant's voting at precinct 7, for he admits on the stand, as a witness in his own behalf, that he cast the vote as charged at that precinct. As to the charge that defendant voted at precinct 4, ward 8, the testimony, as disclosed by the record, shows that two judges of election, one clerk, and a challenger, at precinct 4, ward 8, positively identified the defendant, and testify most clearly and convincingly that the defendant also cast his ballot on the same day, at the same election, at precinct No. 4 in ward 8. In behalf of the defendant, two judges of the election at precinct 4 in ward 8, in said city election, testify that they do not remember of seeing defendant at precinct 4, in ward 8, on the day of election. They recall the fact that some one voted under the name of Frank Anslinger, but say they cannot identify the defendant in court as being that man. They further state that there was, according to their best memory, some difference in the appearance of the man voting as Frank Anslinger and the defendant, as he appeared in court at the trial. They would not state, however, that the man voting as Anslinger was not the defendant. There was evidence, tending to prove a good reputation for defendant as a hard-working, industrious man. Defendant testified in his own behalf. His testimony was an admission that he voted at precinct 7, ward 7, and an absolute, unqualified, and positive denial of voting at precinct 4 in ward 8; and he further stated that he did not register in precinct 4, and that the signature purporting to be his in the book of registration of elections in the Eighth ward, precinct 4, was not in fact his. This is substantially what the record discloses as to the facts in this cause.

It developed upon the cross-examination of witnesses for the state that some of the citizens of the city of St. Louis had offered a reward of $100 to any person who would furnish information leading to the arrest and conviction of any person violating the election law of the city of St. Louis. Counsel for appellant, upon cross-examination of the witness for the state, inquired of the witness if he was not out for this reward. It is evident from the question propounded that its purpose was to affect the credibility of the witness. It is urged that the court erred in permitting counsel for the state, upon redirect examination, to inquire of the witness if the reward, as offered, in any way influenced his testimony. This contention must be ruled against the appellant. The question was clearly competent, and the answer of the witness was relevant, in view of the cross-examination of appellant's counsel. It is a very common practice, and the instances are numerous in which a witness, upon cross-examination, says he is unfriendly to the defendant, and the state's counsel inquires of him if such unfriendly feelings have any influence upon his testimony. The question in this case is analogous in principle, and there is but one opinion by the "bench and bar," and that is that the witness has a perfect right to say whether or not he was influenced in his testimony by hope of reward or certain conditions of his feelings at the time he testifies.

It is next argued that, upon the testimony disclosed by the record as to the reward for information leading to the conviction of any person violating the election laws, the court should have cautioned the jury, by an appropriate instruction, as to the weight of the testimony of the witnesses to whom such testimony was applicable. Under the well-settled law of this state, it is not incumbent upon the court to single out any particular facts, and instruct the jury as to the application and the force and effect of such facts. The court in this cause very fully and fairly presented the questions for the consideration of the jury as to the credibility of the witnesses, and of the weight to be given their testimony; specially directing their attention to their right to take into consideration the interest of the witness, if any, in the result of the trial. This instruction was all that was required upon that subject, and was certainly a fair and proper guide for the jury in considering the interest of any witness to whom the testimony as to the reward might apply. In view of the conclusions reached upon this question, we find no error in the court failing to give the instruction suggested.

Our attention was called in the oral argument by counsel for appellant to the failure of the court to instruct the jury upon the good character of the defendant, and this omission of the court is urged as error. Section 2627, Rev. St. 1899, as amended by Laws 1901, p. 140, substantially provides that it is the duty of the court, whether requested or not, to instruct the jury, in writing, upon all questions of law arising in the case which are necessary for their information in giving their verdict, which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt. Instructions contemplate the guiding of the triors of the facts to a just result, and we take it that the amendment of ...